On two of the five categories, Bald checked "no." On three of the five
categories, he checked "yes," and he left one subcategory--the "straight leg raising
validity check"--blank. As part of his report, Bald also answered specific questions. The
fifth question stated: "If any findings are considered invalid, provide rationale and
detailed reasoning in accordance with Bulletin 239 and the AMA Guides[.]" Bald
responded: "Today's findings are fraught with significant inconsistencies. However, I do
feel that they are a reasonable description of the claimant's current level of function."
Based on Bald's report, the Department of Consumer and Business Services issued an
order on reconsideration that awarded claimant nine percent unscheduled permanent
partial disability.

Employer requested a hearing before the administrative law judge (ALJ).
Relying on OAR 436-035-0007(28), employer argued that Bald's findings were invalid
because they did not satisfy the AMA criteria. The ALJ disagreed, reasoning:

"The employer/insurer's main argument is that Dr. Bald's range of motion
findings are invalid pursuant to OAR 436-03[5]-0007(2[8]) and therefore
should not be rated. The employer/insurer's argument is set forth in detail at
page 4 of its closing argument. Claimant contends on the other hand that
Dr. Bald's findings are valid and responds in detail to the employer/insurer's
argument at page 3 of his closing argument. After careful consideration of
both arguments I must agree with claimant. It is clear that Dr. Bald was
aware of significant inconsistencies regarding claimant's range of motion
findings as he specifically states at Exhibit 19-3 and 19-4. But Dr. Bald
performed three separate measurements for lumbar extension (1.2 percent
impairment) and five separate measurements for lumbar flexion (4.0 percent
impairment). After performing all of these measurements and after a
comprehensive examination of claimant and preparation of a thorough
medical arbiter evaluation report, Dr. Bald concluded that his range of
motion findings are a reasonable description of claimant's current level of
function (permanent impairment). The range of motion findings are
therefore valid and support claimant's scheduled PPD award."

"Validity shall be established for findings of impairment according to the
criterion noted in the AMA Guides to the Evaluation of Permanent
Impairment, 3rd Ed., Rev., 1990, unless the validity criterion for a
particular finding is not addressed in this reference, is not pertinent to these
rules, or is determined by physician opinion to be medically inappropriate
for a particular worker. Upon examination, findings of impairment which
are determined to be ratable pursuant to these rules shall be rated unless the
physical determines the findings are invalid and provides a written opinion,
based on sound medical principles, explaining why the findings are invalid.
When findings are determined to be invalid, the findings shall receive a
value of zero. If the validity criterion are [sic] not met but the physician
determines the findings are valid, the physician must provide a written
rationale, based on sound medical principles, explaining why the findings
are valid."

Under the amended rule, the Board potentially had to resolve two issues in
this case. The first issue is whether Bald's findings of impairment satisfy the AMA
criteria. If they do not, the second is whether the explanation that Bald gave met the
standard stated in OAR 436-035-0007(28); that is, the question becomes whether Bald's
statement--"I do feel that [the findings] are a reasonable description of the claimant's
current level of function"--constitutes a "written rationale, based on sound medical
principles, explaining why the findings are valid."

Before we can address employer's arguments that the Board failed to apply
the rule properly, we must be able to ascertain the basis of the Board's ruling. In other
words, for an order to be adequate for judicial review, we must be able to discern what
the Board found as fact and why its findings led to its conclusions. SAIF v. Brown, 159
Or App 440, 445-46, 978 P2d 407 (1999); Armstrong v. Asten-Hill Co., 90 Or App 200,
205, 752 P2d 312 (1988). Because we cannot do so, we reverse and remand for further
proceedings consistent with this decision.

Reversed and remanded.

1. An interpretative bulletin issued by the Workers' Compensation Division
describes the relevant validity criterion for those measurements:

"The AMA's Guides state that 'Reproducibility of abnormal motion is
currently the only known criterion for validating optimum effort. The
examiner must take at least three consecutive measurements of mobility
which must fall within plus or minus ten percent or five degrees (whichever
is greater) of each other to be considered consistent.'"

2. The Workers' Compensation Division amended the rule in 1997 to add the
final sentence quoted above. That amendment is consistent with our reading of the
former version of the rule. It also eliminates an incongruity in the former version of the
rule. The rule, as amended, permits a physician to explain why findings that do not
comply with the AMA guidelines should nonetheless be used, as well as explaining why
findings that do comply with the guidelines should nonetheless not be used. SeeRoseburg, 169 Or App at 239 n 7 (noting incongruity).

3. Claimant advanced that position in this case, first to the ALJ and then to the
Board, as a reason why it should use Bald's impairment findings. Claimant made that
argument on page three of its closing argument to the ALJ; in his opinion, the ALJ noted
that page of claimant's closing argument and agreed with claimant.